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Development and Settlement of Disputes, The South China Sea Arbitration: the Republic of Philippines vs. the People's Republic of China

The Rules of the Great Game with China Are Just About to Change

By Chris Flynn

The Australian Financial Review, 3 June 2016

We have just passed through a major pivot of history. As is often the case, even when we know great changes are coming, we don’t always see them until we’re on the other side. While we still have a way to go, the axis of this particular pivot is now just behind us.

For some time, the international order built by the West has been openly challenged.  But now, slowly and subtly, it is even beginning to be replaced.  China, now an established global economic and political power, has just started to change the rules of the game.

The implications of this for international relations, international law, human rights, liberalism and for Australia, will be profound.

China carries its own conceptions of international relations and international law.  Naturally, they are formed in its own history, experience and civilisation. As China asserts itself and its interests more confidently abroad, global affairs and the standards by which they are measured will be reshaped by the sheer size and weight, as well as the ideas, of that great and ancient civilisation.

The current global order, largely built by the West over the past 150 years or so (in particular, since World War II), is based on sovereign equality – that’s the idea that each state is equal to any other state. As an idea, it is fundamentally important to our rules-based international order.  That order is our attempt to avoid war where possible through negotiated sets of rules.

On the other hand, China has no conception of sovereign equality in its traditional approach to foreign relations. There is not even a notional idea resembling it. The traditional Chinese system is a tributary system, where foreign states sit in a hierarchy below and relative to China – with China at the top. Historically, a foreign state’s place in that hierarchy was determined by its closeness to Chinese civilisation and the payment of political and economic tribute to China.

The tributary system poses clear challenges for a Western country, like Australia, which has a strong multilateral preference but sits in China’s political and economic sphere of influence.

In the tributary system, there is a very strong preference for bilateral relationships.  China’s accession to multilateral arrangements will likely become much less common in the future. For example, China has repeatedly stated that it prefers to deal bilaterally with the other claimants to parts of the South China Sea, rather than through a collective resolution to those disputes. This bodes terminally for ASEAN’s repeated attempts to resolve the matter multilaterally.

Over the past few years, China has refused to participate in legal proceedings started by the Philippines over its claims in the South China Sea under the multilateral Law of the Sea Convention. It has also indicated that it will ignore the imminent decision of The Hague’s Permanent Court of Arbitration on that dispute. As precedent, that legal decision is extremely important – not only for China and the Philippines, but for peacefully resolving disputes between other countries.

Instead, China has stated that it will establish its own court, in China, to hear these kinds of international disputes. In a tributary framework, where other countries sit in a hierarchy below China, the problems for other states of suing China in China are obvious. It may render a genuine legal resolution of those disputes impossible and would tip the balance in any negotiated settlement of them even further towards China.

But it’s not just its attitude to important treaties that is cause for concern. China’s attitude and language towards the other claimants in the East and South China Seas also reflects a tributary mentality. The hierarchal message in China’s “diplomatic” messages or its state-sanctioned press is clear to anyone that listens.  At the ASEAN Regional Forum in 2010, in seeking to justify China’s claims to the South China Sea, Chinese Foreign Minister Yang Jiechi exclaimed “China is a big country and other countries are small countries, and that’s just a fact”.

Read the remainder of the article at http://www.afr.com/news/world/asia/the-rules-of-the-great-game-with-china-are-just-about-to-change-20160602-gp9pns

Chris Flynn is a partner at Gilbert + Tobin.  He specialises in energy, energy security and international law.

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